County Materials v. Allan Block Corp

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2857
COUNTY MATERIALS CORPORATION,
Plaintiff-Appellant,
v.
ALLAN BLOCK CORPORATION,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05-C-675-S—John C. Shabaz, Judge.
____________
ARGUED MARCH 27, 2007—DECIDED SEPTEMBER 18, 2007
____________
Before MANION, KANNE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. This case is one of those non-
patent patent cases that, as we explain more fully below,
falls within the jurisdiction of the regional courts of
appeals rather than the Federal Circuit. See 28 U.S.C.
§§ 1295(a)(1), 1338; Holmes Group, Inc. v. Vornado Air
Circulation Sys., Inc., 535 U.S. 826, 829-30 (2002) (apply-
ing well-pleaded-complaint rule to § 1338). Two companies,
County Materials Corporation and Allan Block Corpora-
tion, entered into a production agreement (“the Agree-
ment”) giving exclusive rights to County Materials to
manufacture Allan Block’s patented concrete block; the
issue is whether County Line was free to sell an allegedly
non-infringing product, despite the presence of a covenant
2 No. 06-2857
not to compete in the Agreement in which County Line
promised not to sell competing products for 18 months
if it stopped making Allan Block’s product. Following
the termination of the Agreement, County Line decided
not to wait for the full 18 months before jumping back
into the market with a competing product. Allan Block
threatened to sue, but County Line beat it to the court-
house with this suit for a declaratory judgment. County
Line wanted the district court to declare that the covenant
not to compete was unenforceable because it violated
federal patent policy, essentially raising an anticipatory
patent misuse defense to its planned breach of the Agree-
ment. The district court granted summary judgment to
Allan Block, finding no violation of federal patent policy
or Minnesota law. We agree with the district court’s con-
clusions and affirm.
I
County Materials is in the business of manufacturing
concrete blocks. Allan Block develops, markets, and
licenses technology for the manufacturing of concrete
blocks; it does not manufacture blocks itself. In April 1993,
County Materials’s predecessor in interest, County Con-
crete Corporation, entered into a production agreement
with Allan Block. The Agreement granted to County
Materials the exclusive right to manufacture Allan Block’s
patented block products in northwest Wisconsin. County
also was granted the right to sell these products under
the Allan Block trademark. Finally, Allan Block agreed
to provide County Materials with significant technical,
marketing, and strategic support while the Agreement
was in effect.
The Agreement included a limited covenant not to
compete, which allowed County Materials to make and
sell two specific competing block products, without any
No. 06-2857 3
time restrictions. The non-compete provision also re-
quired that for the 18 months following the termination
of the Agreement, County Materials could not “directly or
indirectly engage in the manufacture and/or sale of any
other [competing] . . . block.”
In 2005, Allan Block notified County Materials that it
would be terminating the Agreement. Shortly thereafter,
County Materials completed its own design for a new
concrete block that would compete directly with the
Allan Block products that it had been manufacturing
and selling in northwest Wisconsin. As County Materials
took steps to begin producing this new block, Allan Block
threatened that it would sue to enforce the non-compete
provision from the terminated Agreement. County Materi-
als decided to move first, and so it filed this suit alleging
that the inclusion of the non-compete provision in the
Agreement constituted patent misuse, which made the
Agreement void.
II
The district court’s jurisdiction over this case was
based on diversity. 28 U.S.C. § 1332(a)(1). County Materi-
als is a Wisconsin corporation with its principal place of
business in Wisconsin; Allan Block is a Minnesota corpora-
tion with its principal place of business in Minnesota, and
County Materials alleges damages exceeding $75,000.
Even though the requirements of § 1332 are therefore
satisfied, there is a second potential jurisdictional hurdle
in our path. Allan Block, repeating an argument made to
this court in advance of oral argument, contends that
appellate jurisdiction over this appeal lies with the Fed-
eral Circuit and not this court. The Supreme Court has
held that the Federal Circuit has appellate jurisdiction
4 No. 06-2857
only [in] those cases in which a well-pleaded com-
plaint establishes either that federal patent law
creates the cause of action or that the plaintiff ’s right
to relief necessarily depends on resolution of a sub-
stantial question of federal patent law, in that patent
law is a necessary element of one of the well-pleaded
claims.
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,
809 (1988); see also Holmes Group, supra.Looking as we must at the well-pleaded complaint, it is
apparent that federal patent law does not create the cause
of action here. It is instead a claim about the enforceability
of a contract or license agreement. Resolution of this
appeal does not “necessarily require[ ] resolution of sub-
stantial questions of federal patent law,” as Allan Block
claims. We faced almost the same arguments in Scheiber
v. Dolby Laboratories, Inc., 293 F.3d 1014 (7th Cir. 2002),
where we concluded:
Federal jurisdiction over the suit is based on diversity
of citizenship, because a suit to enforce a patent
licensing agreement does not arise under federal
patent law. E.g., Jim Arnold Corp. v. Hydrotech
Sys., Inc., 109 F.3d 1567, 1575 (Fed. Cir. 1997). The
presence of a federal defense (here, patent misuse) is
irrelevant to jurisdiction. Christianson v. Colt Indus-
tries Operating Corp., 486 U.S. 800 (1988).
293 F.3d at 1016. The same is true for a declaratory
judgment action, where the roles of plaintiff and defendant
are reversed. As we have held before, “[i]n declaratory
judgment cases, the well-pleaded complaint rule dictates
that jurisdiction is determined by whether federal juris-
diction would exist over the presumed suit by the declara-
tory judgment defendant.” Ne. Ill. Reg’l Commuter R.R.
Corp. v. Hoey Farine & Downes, 212 F.3d 1010, 1014 (7th
Cir. 2000), quoting GNB Battery Techs., Inc. v. Gould, Inc.,
No. 06-2857 5
65 F.3d 615, 619 (7th Cir. 1995). The Fifth Circuit case
cited by Allan Block is not to the contrary, because that
case involved the question whether an attempt to raise
claims under a patent licensing agreement that had
arisen out of the settlement of a patent infringement
suit was barred by res judicata. NaTec, Inc. v. DeTer Co.,
28 F.3d 28 (5th Cir. 1994). Declining to reach the merits,
the Fifth Circuit held that “[t]he right of the patent
holder . . . to enforce the settlement agreements and
obtain royalties for use of the patent after it expires is
a substantial question of federal patent law.” Id. at 28.
This meant that the suit arose under 28 U.S.C. § 1338, and
that appellate jurisdiction necessarily lay in the Fed-
eral Circuit, under 28 U.S.C. § 1295. In our case, the
district court’s jurisdiction over the present case was
not based even in part on § 1338. Appellate jurisdic-
tion therefore lies in this court, see 28 U.S.C. §§ 41, 1291,
and we are free to proceed to the merits.
III
This court reviews a district court’s decision to grant
summary judgment de novo. Balderston v. Fairbanks
Morse Engine Div. of Coltec Indus., 328 F.3d 309, 320 (7th
Cir. 2003). The parties appear to agree that the produc-
tion agreement is a patent license, which is the way
that we too would characterize it. County Materials
essentially claims that the inclusion of the covenant not
to compete in the patent license here was per se unlaw-
ful patent misuse and the improper result of patent
leverage. While at one time this argument might have
had traction, in certain circumstances, it is at least
disfavored today, if not entirely rejected. Today, the
concept of patent misuse is cabined first by statute, 35
U.S.C. § 271(d), which essentially eliminates from the
field of “patent misuse” claims based on tying and refusals
6 No. 06-2857
to deal, unless the patent owner has market power, and
second by case law. As the Federal Circuit explained in
Virginia Panel Corp. v. MAC Panel Co., 133 F.3d 860(Fed. Cir. 1997), there are certain practices that court
identified as “constituting per se patent misuse,” including
“arrangements in which a patentee effectively extends
the term of its patent by requiring post-expiration royal-
ties.” Id. at 869; see also Brulotte v. Thys Co., 379 U.S. 29,
32 (1964) (holding that “a patentee’s use of a royalty
agreement that projects beyond the expiration date of
the patent is unlawful per se”). The practices identified
in § 271(d), in contrast, may not be branded “misuse.”
Va. Panel Corp., 133 F.3d at 869.
If a practice is not per se unlawful nor specifically
excluded from a misuse analysis by § 271(d)
a court must determine if that practice is reasonably
within the patent grant, i.e., that it relates to subject
matter within the scope of the patent claims. If so, the
practice does not have the effect of broadening the
scope of the patent claims and thus cannot con-
stitute patent misuse. If, on the other hand, the
practice has the effect of extending the patentee’s
statutory rights and does so with an anti-competitive
effect, that practice must then be analyzed in accor-
dance with the rule of reason. Under the rule of
reason, the finder of fact must decide whether the
questioned practice imposes an unreasonable re-
straint on competition, taking into account a variety
of factors, including specific information about the
relevant business, its condition before and after the
restraint was imposed, and the restraint’s history,
nature, and effect.
Id. (internal citations and quotation marks omitted).
County Materials is not claiming that Allan Block was
trying to extend the term of its patent by requiring post-
No. 06-2857 7
expiration royalties. It is wrong, therefore, to argue that
some form of per se analysis applies here. (By the same
token, we have no need to explore further the question
whether it makes any economic sense to treat these
arrangements so harshly. See Scheiber, 293 F.3d at 1020,
which questions the economic soundness of per se condem-
nation.) The covenant not to compete in the agreement
before us must therefore be assessed under a rule of
reason. County Materials argues that this clause is
unreasonable because it allows Allan Block to use its
patent to exclude competition in the market from
unpatented products.
As County Materials recognizes, it is essentially making
a leveraging argument. It argues both that “[l]everage is
presumed” and that there is a “proper method to con-
clude whether patent leverage was used.” Whatever else
one might say about leveraging theory (which as we noted
in Scheiber has been criticized in academic circles),
however, there is no doubt that there is nothing “pre-
sumed” about it outside the narrow confines of post-
expiration royalties. In Brulotte, the Supreme Court held
that there are both proper and improper uses of patent
leverage. It acknowledged that “[a] patent empowers the
owner to exact royalties as high as he can negotiate with
the leverage of that monopoly[, b]ut to use that leverage to
project those royalty payments beyond the life of the
patent is analogous to an effort to enlarge the monopoly of
the patent.” 379 U.S. at 33 (emphasis added). But as both
Congress and the Court have come to recognize, it may
not be possible to exercise any leverage at all from a
patent, if that patent does not confer any market power
upon its owner. See Ill. Tool Works Inc. v. Independent
Ink, Inc., 547 U.S. 28, 42 (2006) (noting that Congress
did not intend the mere existence of a patent to con-
stitute the requisite “market power” for purposes of
patent misuse and coming to the same conclusion for
8 No. 06-2857
antitrust purposes); see also Aronson v. Quick Point Pencil
Co., 440 U.S. 257 (1979) (holding that it was not against
public policy to enforce an agreement providing for de-
ferred royalties on an invention, whether or not a patent
was ultimately granted).
The Federal Circuit’s decision in Windsurfing Int’l, Inc.
v. AMF, Inc., 782 F.2d 995 (Fed. Cir. 1986), provides
helpful guidance in deciding whether a particular use of a
patent might amount to “misuse” and thus furnish the
defense to a licensing agreement that County Materials is
looking for. In Windsurfing, the Federal Circuit said that
patent misuse does not exist unless the party asserting
it can “show that the patentee has impermissibly broad-
ened the ‘physical or temporal scope’ of the patent grant
with anti-competitive effect.” 782 F.3d at 1001 (emphasis
added). This standard is satisfied by showing some
overall harm to competition, and so, contrary to County
Materials’s contentions, it fully takes into account the
fact that patents exist to “spur progress and innovation.”
The Windsurfing standard for patent misuse necessarily
considers whether progress and innovation have been
stymied and allows courts concretely to answer the
vague question whether progress has been slowed.
Most of the cases on which County Materials relies
come from an era before the Supreme Court recognized
the efficiencies that might flow from vertical restrictions,
which is the type of restriction we have when a patent
owner (which does not compete in the manufacturing
sector) imposes restraints on a manufacturing licensee.
See generally Leegin Creative Leather Prods., Inc. v. PSKS,
Inc., 127 S. Ct. 2705, 2714 (2007); Bus. Elecs. Corp. v.
Sharp Elecs. Corp., 485 U.S. 717, 734-36 (1988); Cont’l
T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 59 n.29
(1977). So, for example, Columbus Auto. Corp. v. Oldberg
Mfg. Co., 387 F.2d 643, 644 (10th Cir. 1968), assumed
No. 06-2857 9
that a clause in a patent license agreement that pro-
hibited the licensee from handling competing products
was unlawful. Similarly, the Third Circuit’s decision in
National Lockwasher Co. v. George K. Garrett Co., 137
F.2d 255, 256 (3d Cir. 1943), assumed that an exclusive
dealing arrangement, under which a patent licensee
promised the licensor that it would work exclusively
with the licensor’s technology, was impermissible. This
is not the assumption that would govern today, either in
the courts or in the federal enforcement agencies. In the
Antitrust Guidelines for the Licensing of Intellectual
Property § 5.4 (April 6, 1995), the Department of Justice
and the Federal Trade Commission wrote that “[i]n the
intellectual property context, exclusive dealing occurs
when a license prevents the licensee from licensing,
selling, distributing, or using competing technologies.
Exclusive dealing arrangements are evaluated under the
rule of reason.” As support for the latter statement, the
Agencies cited Tampa Elec. Co. v. Nashville Coal Co., 365
U.S. 320 (1961), in which the Supreme Court used the
rule of reason to evaluate an exclusive dealing arrange-
ment that did not involve intellectual property.
Anticompetitive effects, in short, are a critical element
of any patent misuse case that is evaluated under a rule
of reason approach. Windsurfing was one of the first cases
to recognize this; it required “a factual determination
[that] . . . reveal[s] that the overall effect of the license
tends to restrain competition unlawfully in an appropri-
ately defined relevant market.” 782 F.2d at 1001-02(emphasis added). A plaintiff is not required to show a
defendant’s subjective intent to obtain some kind of
leverage over its patent. We assume, for the sake of
argument, that it is also not necessary for a plaintiff to
plead a case that would suffice to show that the antitrust
laws have been violated. But, at the summary judgment
stage, some evidence tending to show an adverse effect
10 No. 06-2857
in an economically sound relevant market is essential
for any claim governed by the rule of reason.
With these principles in mind, we are ready to assess
County Materials’s case. To begin with, the Agreement
between County Materials and Allan Block shows no sign
of one-sidedness or abuse of power on Allan Block’s part.
County Materials received significant benefits, starting
with the right to use the patented technology for the
manufacture of the concrete blocks, and continuing with
the right to use Allan Block’s trademark and the right
to receive supporting technical, marketing, and strategic
services from Allan Block. In return, County Materials
had to promise to pay royalties to Allan Block and to
devote significant efforts to the exploitation of Allan
Block’s patent. If County Materials had been free to pick
and choose among all potentially competing products on
the market, Allan Block may have signed over the rights
to use its patent and know-how for little or nothing in
return. Allan Block’s services alone have considerable
value for any company undertaking the manufacture and
sale of these products (or so the parties could have con-
cluded), whether or not they are tied to a patented prod-
uct. Nothing in these facts suggests that Allan Block
needed or used any kind of leverage made possible by
the patent to secure County Materials’s promise to re-
frain from working with all but the designated two com-
peting products, or its promise to refrain from using other
products for 18 months after the expiration of the Agree-
ment.
In fact, this was not a particularly onerous covenant not
to compete. It allowed County Materials to continue to
manufacture and sell not one but two competing products,
which the district court reasoned would “guarantee
plaintiff could always compete with defendant in the
landscape block market.” In addition, the clause had
both temporal and geographical limits. It lasted for only
No. 06-2857 11
18 months after the Agreement’s termination (a period
which no one contends goes beyond the duration of Allan
Block’s patent) and applied only to County Materials’s
exclusive production territory, which was a section of
Wisconsin. Although the non-compete clause may have
hurt County Materials’s ability to compete as aggressively
as it would have liked in the concrete block market in
northwest Wisconsin, there does not appear to be any
evidence in the record showing that these limited require-
ments have hurt competition for cement blocks in County
Materials’s former exclusive territory. In the related field
of antitrust, the Supreme Court has said that “[i]t is
axiomatic that the antitrust laws were passed for the
protection of competition, not competitors.” Brooke Group
Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209,
224 (1993) (internal quotation marks omitted). Independ-
ent Ink, supra, held that the principles underlying the
patent misuse doctrine are closely aligned to those under-
lying antitrust law. Without a showing that this clause
had any effect on the broader market for concrete block
(as opposed to an effect only on County Materials), its
purported patent misuse defense cannot succeed.
IV
Even if its patent misuse argument fails, County Materi-
als maintains that the covenant not to compete violates
general principles of Minnesota law, which applies here.
Minnesota courts look to three factors in evaluating
this kind of clause: it must (1) protect a legitimate inter-
est of the party in whose favor it is imposed, (2) be rea-
sonable as between the parties, and (3) not be injurious
to the public. Haynes v. Monson, 224 N.W.2d 482, 484
(Minn. 1974). Minnesota decisions on point do not allocate
the burden of proving or disproving these factors, but
rather look to the court to weigh the evidence in support
of or against each factor.
12 No. 06-2857
As for the first factor, we are satisfied that Allan Block
had a legitimate interest in the other resources and
intangibles that it gave to County Materials as part of the
Agreement. “Legitimate interests that may be protected
include a company’s ‘goodwill, trade secrets, and confiden-
tial information.’ ” Medtronic, Inc. v. Advanced Bionics
Corp., 630 N.W.2d 438, 456 (Minn. Ct. App. 2001) (inter-
nal quotation marks omitted). County Materials claims
that Allan Block “admitted it could not even identify any
confidential information supplied to [County Materials].”
That is not, however, a fair account of what the Allan
Block officials said. Allan Block officer Robert Gravier
testified that Allan Block “provided a stream of informa-
tion relating to the technology over a 12-year period of
time and encompassing manufacturing, molds, engineer-
ing, marketing and—and supporting the sale of the blocks
under the license.” This suffices to show that goodwill,
confidential information, and trade secrets were given to
County Materials. Allan Block employee Timothy Bott
testified,
I made several person[al] trips over to the [County
Materials] Eau Claire facility. . . . There were numer-
ous phone calls over the 12- or 13-year history of us
working together, everything from mix design to actual
issues, making the product. I was at the Eau Claire
facility when they initially produced the first block.
I assisted with the molds and other issues, training
their staff on the differences between the different
products and the configurations of the molds.
Bott also testified specifically as to the engineering
support given to County Materials:
We provide a service that’s both formal and informal.
The formal service allows for someone to have us
prepare preliminary designs, working with the local
engineer to assist in the facilitation . . . of [County
No. 06-2857 13
Materials] . . . landing a project that requires engi-
neering. We work with the engineers that locally will
review and do the final design, to educate them on the
subject matter. This product concept and this design
concept . . . is relatively new, and so most engineers
have little or no education relative to this.
(emphasis added). None of this testimony has been dis-
puted. The record shows that Allan Block had a legitimate
interest in the resources and support that it gave to
County Materials during their 12-year relationship.
The second factor is whether the agreement is reason-
able as between the parties. Minnesota courts require that
non-compete agreements not be greater than necessary
to protect the legitimate business interest. Dynamic Air,
Inc. v. Bloch, 502 N.W.2d 796, 799 (Minn. Ct. App. 1993).
The Dynamic decision requires courts to consider “the
nature and character of the employment, the nature and
extent of the business, the time for which the restriction
is imposed, the territorial extent of the covenant, and
other pertinent conditions.” Id. Although these factors
were used in assessing an employee’s non-compete clause
in Dynamic, we find them equally useful in evaluating
the non-compete provision at issue here. The provision is
well-tailored to the legitimate interests of Allan Block. As
part of its agreement, Allan Block provided a significant
amount of start-up assistance and ongoing technical and
marketing assistance to County Materials. These ser-
vices presumably cost time and money. Requiring a lag
time before County Materials can produce new products
that compete with those previously licensed to it by Allan
Block allows Allan Block to retain some of the value of its
services. The Agreement was structured in a way that
would eliminate any incentive on County Materials’s
part to use Allan Block to get its own concrete block
business started and then breach the contract once it
had taken advantage of Allan Block’s assistance. Further
14 No. 06-2857
supporting the reasonableness of this restriction is the
fact that it extends only to the geographic area in which
County Materials sold the Allan Block blocks as part of
the Agreement.
Further, when a licensee gets an exclusive patent
license, as County Materials did here, it is benefitting
from the patentee’s property rights more than it would
with a non-exclusive license. The licensee reaps the
rewards of the patent up to the bounds of its exclusivity.
Given this additional benefit, it seems only fair that the
licensee can be assigned part of the responsibility of
promoting the product in the broader market. Under a
clause like this, the licensee has a stake in ensuring the
success of the product. If the granting of an exclusive
license is not itself a restraint on trade (as it is not, and no
one in this case alleges otherwise), then requiring as a
condition of that license that the licensee not undermine
the value of the bargain is not unreasonable either.
The final factor is that the challenged restraint must
not be injurious to the public. Because covenants not to
compete are not categorically prohibited by Minnesota
law, it must be the case that such a clause would not be
deemed injurious to the public unless some particular
harm was alleged. Minnesota courts have upheld non-
compete provisions in markets where multiple producers
of like goods are present, reasoning that the general public
is not injured by a non-compete agreement because
competition in the relevant market is healthy. Bess v.
Bothman, 257 N.W.2d 791, 795 (Minn. 1977). County
Materials has made no attempt to produce evidence that
the relevant geographic area here is subject to a
monopoly in landscape bricks made with Allan Block’s
technology. To the contrary, the fact that the production
agreement listed two alternative products as exceptions
to the non-compete provision is evidence that good sub-
stitutes for Allan Block products existed and were sold
No. 06-2857 15
within the territory covered by the Agreement. There is
no basis to conclude that the non-compete provision
violates Minnesota state law.
V
Finally, County Materials argues that the district court
abused its discretion in denying its motion to unseal
portions of the record. A district court’s decision to seal
portions of the record is reviewed for abuse of discretion.
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
“The trial court is in the best position to weigh fairly the
competing needs and interests of parties affected by
discovery. The unique character of the discovery process
requires that the trial court have substantial latitude to
fashion protective orders.” Rhinehart, 467 U.S. at 36.
Of course,
[p]rotective orders entered during discovery in civil
cases have . . . justification . . . and . . . limits. Confi-
dentiality while information is being gathered not
only protects trade secrets but also promotes disclo-
sure: parties having arguable grounds to resist discov-
ery are more likely to turn over their information if
they know that the audience is limited and the court
will entertain arguments focused on vital knowledge
that a party wants to use later. . . . Information that
is used at trial or otherwise becomes the basis of
decision enters the public record. . . . Secrecy per-
sists only if the court does not use the information to
reach a decision on the merits.
In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992). County
Materials has not asserted that the district court’s deci-
sion relied on sealed portions of the record (because it did
not), and so it needs some other basis on which to chal-
lenge the court’s ruling.
16 No. 06-2857
We have held that “the public at large pays for the courts
and therefore has an interest in what goes on at all stages
of a judicial proceeding[, but t]hat interest does not
always trump the property and privacy interests of the
litigants.” Citizens First Nat’l Bank v. Cincinnati Ins. Co.,
178 F.3d 943, 945 (7th Cir. 1999). The public’s interest
“can be overridden only if the . . . [privacy] interests
predominate in the particular case, that is, only if there
is good cause for sealing a part or the whole of the record
in that case.” Id. Citizens concluded that
[t]here is no objection to an order that allows the
parties to keep their trade secrets (or some other
properly demarcated category of legitimately con-
fidential information) out of the public record, provided
the judge (1) satisfies himself that the parties know
what a trade secret is and are acting in good faith in
deciding which parts of the record are trade secrets
and (2) makes explicit that either party and any
interested member of the public can challenge the
secreting of particular documents.
Id. at 946. The district court gave Allan Block a limited
ability to keep under seal certain confidential documents,
including transcripts of certain Allan Block employees
and a few papers. Even though the district court may
have acted too quickly when it summarily rejected
County Materials’s motion to unseal the documents, at
this point in the case it is County Materials’s burden to
show how this prejudiced it. It has not done so. Rather
than pointing to particular documents and explaining
why they should have been unsealed, County Materials
has argued instead that everything should have been
unsealed. In fact, the district court did unseal portions of
the sealed documents, including everything on which it
relied in its opinion. Without more information from
County Materials, we are not in a position to say either
that the court abused its discretion by failing to unseal
No. 06-2857 17
more or that County Materials was prejudiced by the
court’s actions.
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-18-07